Elijah Tapatapa v Rydale Ridge Park Private Limited

In October 2016, the respondent sold the applicant stand 1730 Rydale Ridge Park measuring 300 square metres for US$15,500.00. The purchase price was to be paid with a deposit of US$3,500.00 and sixty monthly instalments of US$200.00. The applicant claims to have paid the deposit on 21 October 2016, and thereafter between December 2016 and December 2019 paid US$7,400.00. From January to August 2020, he made eight instalments of ZW$8,000.00 totaling ZW$18,900.00. Following currency changes between 2018-2019 when Zimbabwe moved from US dollar to local dollar, the applicant claims he did not receive notice sent in May 2019 advising purchasers that outstanding balances were to be liquidated in US dollars at US$100.00 per month. The respondent's position is that the applicant has only paid the equivalent of US$9,424.00 thus far. The applicant sought a declaratur that he had paid the full purchase price and demanded transfer of the property. The respondent disputed this, claiming breaches of the agreement including that payments were made electronically rather than in cash as stipulated in clause (a) of the agreement, and that the amounts paid were insufficient.

• Whether the court can grant a declaratur on what is essentially a question of fact rather than a declaration of rights
• Whether the applicant breached the agreement by making electronic payments instead of cash payments as stipulated
• Whether the currency changes introduced by S.I. 33/19 converted outstanding USD balances to RTGS dollars at 1:1 parity
• Whether the applicant had discharged his payment obligations under the agreement
• Whether material disputes of fact existed that could not be resolved on paper

The application for a declaratur was dismissed with costs.

A declaratur cannot be granted where the relief sought concerns the determination of factual matters rather than the declaration of legal rights. Whether payments were made in accordance with an agreement is a question of fact, not a question of right. Where material disputes of fact exist that cannot be resolved on paper regarding alleged breaches of contract, a court cannot grant a declaratur. The meaning of a contract made in the context of business operations is always a question of fact, and before any rights can be pronounced, such questions of fact must be determined through appropriate proceedings.

The court observed that whether parties were free to enter into new agreements with their own specific arrangements following the currency changes was not before the court. The court also noted, without deciding, the respondent's argument that where law makes performance of payments as agreed impossible, the agreement itself may be effectively discharged due to impossibility, though the applicant's counsel argued that an instalment sale of land is not discharged unless pronounced upon by the court. The court applied the principle from Zambezi Gas Zimbabwe that balances owing in US dollars were converted to RTGS dollars at 1:1 parity under S.I. 33/19, noting that while that case did not factually address an instalment sale, the principle was effectively the same.

This case is significant in Zimbabwean law for clarifying the distinction between declarations of fact versus declarations of rights in declaratory applications. It reinforces that courts will not grant declaraturs where material disputes of fact exist that cannot be resolved on paper, and that such factual disputes must be determined through appropriate proceedings before rights can be declared. The case also applies the principles from Zambezi Gas Zimbabwe v N.R. Barber regarding the conversion of USD balances to RTGS dollars under S.I. 33/19 to instalment sale agreements, confirming that outstanding balances were deemed opening balances in RTGS dollars at 1:1 parity with the US dollar. It demonstrates the procedural limitations of declaratory relief in contractual disputes involving factual controversies.